Office of Merit Systems Oversight and Effectiveness
Date: May 8, 2001
Matter of: [claimant]
File Number: 003118
OPM Contact: Jo-Ann Chabot
A federal agency requested guidance on distributing the unpaid
compensation of a deceased employee (decedent). The decedent died
from a gunshot wound inflicted by her son, one of the two
beneficiaries that she designated on the Standard Form (SF) 1152
(Designation of Beneficiary Unpaid Compensation of Deceased Federal
Employee). The agency wants to know whether it still may pay the
decedents son his share of the compensation. For the reasons stated
below, the decedents son may not receive any of her unpaid
compensation. The agency also wants to know whether the remaining
beneficiary (the decedents daughter) may receive the share of the
unpaid compensation that otherwise would have been distributed to
the decedents son. For the reasons stated below, the agency may pay
that portion of the decedents unpaid compensation to her
daughter.
On November 21, 1983, the decedent signed the SF 1152,
designating her son and daughter as beneficiaries and specifying
that each would receive one-half of her unpaid compensation.
According to the newspaper account that the agency provided, the
decedents son allegedly shot her, following an argument on
June 23, 1998. The newspaper account reflects that he was
arrested and charged with murder, use of a firearm to commit a
felony, and unlawful discharge of a weapon. On July 5, 1998, the
decedent died of the gunshot wound that her son had inflicted. Her
husband and two children survived her. The Sentencing Order of the
Court that considered the criminal charges against the decedents
son shows that, on February 2, 1999, he was found guilty of second
degree murder and, on June 4, 1999, he was sentenced to 25 years in
prison.
It is against public policy to permit an individual to profit
from his or her wrongful act. Sally Ann Morgan, B-193743
(Sept. 28, 1979). Therefore, a beneficiary who participates in
killing the deceased employee may not receive payment for that
employees unpaid compensation and allowances, unless the record
clearly establishes that the beneficiary did not act with felonious
or wrongful intent. Sally Ann Morgan, supra; Goller, Leveton
& Stoll, B-175195 (April 26, 1972); 51 Comp. Gen. 483
(1972). The Sentencing Order in this case clearly establishes that
the decedents son acted with felonious intent in inflicting the
gunshot wound that resulted in the decedents death. Thus, he is
disqualified from sharing in any payment for the decedents unpaid
compensation and allowances.
Section 5582 of title 5, United States Code governs settlement
of the accounts of deceased employees of the federal government,
and specifies a statutory order of precedence for disposition of a
deceased employees unpaid compensation. Section 5582 provides in
part:
In order to facilitate the settlement of the accounts of
deceased employees, money due an employee at the time of his death
shall be paid to the person or persons surviving at the date of
death, in the following order of precedence, and the payment bars
recovery by another person of amounts so paid:
First, to the beneficiary or beneficiaries designated
by the employee in a writing received in the employing agency
before his death.
Second, if there is no designated beneficiary, to the
widow or widower of the employee.
(Emphasis added.)
The language of section 5582 shows that, in establishing this
order of precedence, Congress intended to "facilitate the
settlement of the accounts of deceased employees" and to favor, for
the distribution of compensation and allowances due, the
beneficiaries that employees have designated to receive their
unpaid compensation. Indeed, section 5582 provides for payment to
individuals in successive categories of precedence only when nobody
qualifies for placement in any of the preceding categories. The
corresponding OPM regulation, 5 CFR 178.204, tracks the
statute.
Additionally, the SF 1152 specifies that:
I hereby direct unless otherwise indicated above, that,
if more than one beneficiary is named, the share for any deceased
beneficiary who may predecease me shall be distributed equally
among the surviving beneficiaries, or entirely to the
survivor.
In designating more than one beneficiary and signing the SF
1152, an employee acknowledges the possibility that the share of
one or more beneficiaries might be distributed to the other
beneficiary or beneficiaries. Moreover, the disqualification of the
decedents son from taking his share of the unpaid compensation in
this case places him in the same position, in effect, as that of a
designated beneficiary who predeceased the employee.
Accordingly, all of the decedents unpaid compensation should be
paid to the remaining beneficiary the decedents daughter.